United States District Court, N.D. Illinois, Eastern Division
TINA HERNANDEZ, as special adm'r for the estate of Ted W. Hernandez, Plaintiff,
CITY OF CHICAGO, OFFICER ROBERT GOINS, and UNKNOWN CHICAGO POLICE OFFICERS, Defendants.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge
Hernandez sued the City of Chicago, Officer Robert Goins, and
unknown Chicago Police Department officers on behalf of Ted
Hernandez, after Goins fatally shot him. A jury found in
favor of the defendants. Hernandez has moved for a new trial.
December 28, 2007, Goins, a Chicago Police Department
officer, arrived at Ted Hernandez's residence in response
to a 911 call. Ted Hernandez suffered from mental illness.
After Goins arrived, he encountered Ted Hernandez on the roof
of the residence. According to Goins, Ted Hernandez
approached him with a knife, ignoring his command to stop,
and Goins shot him. Ted Hernandez died from his wounds.
Hernandez sued Goins, alleging excessive force, and the City
of Chicago, alleging an unconstitutional policy or practice
under Monell and wrongful death. (From hereon, for
sake of brevity, the Court refers to Tina Hernandez by her
surname and Ted Hernandez by his full name.) During closing
arguments, the City's attorney made multiple
misstatements of law and evidence to which Hernandez objected
and, eventually, moved for a mistrial. The Court did not rule
on the motion at the time and thus effectively denied it. The
jury found in favor of the defendants on each claim.
Hernandez has moved for a new trial.
obtain a new trial under Federal Rule of Civil Procedure
59(a), Hernandez must show that "the jury's verdict
resulted in a miscarriage of justice or [that] the verdict,
on the record, cries out to be overturned or shocks [the
Court's] conscience." Davis v. Wis. Dep't of
Corr., 445 F.3d 971, 979 (7th Cir. 2006). Hernandez
argues that a new trial is warranted because defense counsel,
during closing argument, misstated the facts and law and made
an unduly prejudicial argument. The Court applies the same
two-step process for each of these purported errors:
Hernandez must show (1) an error occurred and (2) the error
prejudiced her case. Whiting v. Westray, 294 F.3d
943, 944 (7th Cir. 2002) (citation omitted).
error of this sort is less likely to be considered
prejudicial if it was followed by a curative instruction.
Christmas v. City of Chicago, 682 F.3d 632, 641 (7th
Cir. 2012). When considering the effect of a curative
instruction, the Court evaluates the timeliness and
effectiveness of the instruction, as well as its significance
when viewed in the context of the record as a whole.
Id. (citing United States v. Humphrey, 34
F.3d 551, 557 (7th Cir. 1994)).
the purported misconduct cited in Hernandez's motion for
a new trial occurred during closing argument by defense
counsel. The Seventh Circuit has repeatedly emphasized that
movants seeking a new trial based on misconduct during
closing arguments must climb a very steep hill to obtain
relief. See, e.g., Smith v. Hunt, 707 F.3d 803, 812
(7th Cir. 2013) (improper statements in closing must present
a "high level of impropriety and prejudice" to
justify a new trial); Schandelmeier-Bartels v. Chicago
Park Dist., 634 F.3d 372, 388 (7th Cir. 2011) ("We
have stated repeatedly that improper comments during closing
argument rarely amount to reversible error.").
reviewing the errors that Hernandez identifies, the Court
first notes its difficulties with Hernandez's briefs. In
the memorandum supporting her motion for a new trial,
Hernandez presents long, unedited excerpts of the
transcript-one such excerpt consumes the entire third page of
her brief-and appends cursory statements that the excerpt was
a material misstatement of law or fact. She has essentially
left it to the Court to try to figure out the basis for her
Misstatements of law
Hernandez argues that one of the City's attorneys,
Barrett Boudreaux of Hale Law LLC, misstated the law during
closing argument by stating that Goins was justified in
shooting Ted Hernandez merely because he was holding a knife.
(Here, the Court reviews both the first and fourth purported
misstatements of law that Hernandez identified, as they refer
to the same exchange between the litigants and the Court.
See Def.'s Resp. to Pl.'s Mot. for New Trial
providing expansive quotations of the transcript to the
court, Hernandez does not clearly indicate which portion of
counsel's argument she contends suggested that Goins was
justified in shooting Ted Hernandez simply because he was
holding a knife. Upon review of the record, the Court
identified the following passage as the argument that
Hernandez probably intended to challenge on this
And if you believe that Officer Goins did reasonably fear for
his life at the time he fired his weapon, he is justified in
that use of force. And, of course, a knife is a deadly
weapon, and because expert Jeffrey Noble could not think of a
specific example of an offender killing an armed police
officer with a knife does not mean it doesn't happen. He
told you it does ...